Things you need to know about wills in NZ

A will is your written testament that states who you wish to benefit from your estate and assets in the case of your death. With a will you’re able to provide for your family, friends and even pets.

If you pass away without a will, New Zealand has laws that set out who will receive your assets in a particular order of priority and who will look after your children if you have any. You’ve spent your lifetime creating your legacy.  You can be in control of what happens to it.

This article outlines suggestions for you to consider when thinking about drafting a will, but it in no way constitutes legal or financial advice, nor does it provide any assurance that a will drafted in accordance with this article will be considered legally binding. 

Who can make a will?

Most adults can. In New Zealand you need to be at least 18 years old and of sound mind, although there are some exceptions where those under 18 and of sound mind can make a will.

Requirements for a valid will

In New Zealand, a will must meet five basic criteria in order to be considered a valid legal document.

1. It must be in writing: Spoken or online-only wills aren’t legally enforceable.
2. It must be signed: You (the will-maker) must initial each page and add your signature at the end of your will to show you approve every word above it.
3. Use two witnesses: Ask two adults to witness you sign your will. You must witness each of their signatures too. These witnesses can’t be beneficiaries under the will (or married to anyone who is) and must be at least 20 years old.
4. Be of sound mind and act freely: When you sign, you must fully understand the instructions in your will, what you own and who could claim a share. No one should be pressuring you.
5. (Usually) be at least 18: If you’re under 18 but married, in a civil union, serving at sea or in the Armed Forces, you may be able to make a will. In some cases, the Family Court will need to be satisfied that you understand the effect of your will.  

Benefits of having a will 

A will lets you decide exactly who inherits your estate and how your debts (if any) are handled. You’ll need to appoint an executor (or more than one of you’d like) to ensure your wishes are carried out.  

Having a valid will can speed up the process to grant your loved ones access to your bank accounts, KiwiSaver funds and insurance payouts to cover mortgages, funeral costs and other expenses. In your will you can direct how debts are paid, specify funeral preferences and leave special gifts or digital assets. Clear written instructions can help prevent family disputes and keep everyone focused on your intentions.

When life changes, you can also make updates to your will. You can either write a “codicil” which is a legal document that supplements your will, or you can create an entirely new will to replace the old one. Marriage, separation, a new baby, a property sale or purchase are all common triggers.

Taking a little time now to write and sign your will brings certainty and peace of mind for you that your wishes will be honoured – and ensures your family won’t be left in the lurch when the time comes.

Ways to create your will

Lawyer or trustee company. This is the most reliable option. Always consider legal advice when planning how your estate should be handled when you’re no longer around. This is especially if you have significant assets, own a business, have a blended family, have overseas assets or have other unique needs. Your local Community Law Centre can provide you with free initial legal advice. Find your local Community Law Centre here or visit their website for more resources around wills.  

What to write in a will

When you sit down to draft your will, include clear instructions about how you’d like your estate to be administered. Some things to consider when writing your will are below:

• Executors: You’ll need to appoint an executor (or executors). This person (or company) is responsible for carrying out your wishes in your will. You can appoint just one person, or as many as you’d like (two, three, four and so on). You can also appoint replacement executors in case the person or people you initially appointed are unable to carry out the role once you’ve passed away. 
• The revocation of any earlier wills: Under the Wills Act 2007 you automatically revoke any prior wills by including a clear statement in your new will (or by destroying the old document). This avoids confusion over which version is valid. 
• Beneficiaries: A beneficiary is any person or organisation who is left anything under a will. List everyone you want to receive something – and what they should each receive. Think family, friends or charities, and add back-ups if someone can’t take their gift.
• Guardianship: If you have children, state who should look after them and how you’d like their care arranged.
• Assets and debts: Specify which property, bank accounts, investments or personal items go to each person, and note how any loans or mortgages should be settled.
• Special gifts: Call out heirlooms, digital files or sentimental items you want to pass on.
• Funeral wishes: Don’t leave your family guessing on burial versus cremation, what type of service you’d prefer, and your intentions around organ donation.
• Online legacy instructions: You can find more information on this further on in the article.

Putting these details and anything else you’d like to add in writing makes it simple for your executors to follow your wishes about everything that matters to you when the time comes.

Online account legacy instructions 

This is still fairly new and not something everyone thinks about, but your digital life, from email and social media to blogs, domain names and online businesses, continues after you’re gone. 

To make sure your wishes are carried out, include clear instructions to your executor in your will like how to access your password manager or a simple list of usernames and where to find credentials. List each key account, email, social media, blogs, online shops or crypto wallets and note next to each whether it should be deleted, transferred or preserved, plus any backup locations (for example cloud folders or external drives). 

Random fact - you can donate your digital footprint to the archives.

Keep this part of your will in mind each time you add a new service or change passwords so your executor can act quickly and securely.

Storing and updating your will 

You must keep the original copy safe. If you’ve chosen to use a lawyer or the Public Trust, they’ll usually store it for you and you can tell your executor where to find it. 

Make sure your will is up to date by reviewing the wording every couple of years or after any major life change. Create a new will if the alterations are more than a simple tweak. 

Contesting a will 

If someone believes a will doesn’t reflect the deceased’s true intentions or unfairly excludes them, they may challenge it in the High Court.

Contesting a will can be complex, costly and time-consuming. Court processes can be complex and with strict deadlines, so if you believe you have a valid claim, speak with a lawyer specialising in succession law early to get advice on your options and next steps.